Ex parte Seals Piano Co.

Decision Date17 December 1914
Docket Number144
Citation67 So. 240,190 Ala. 641
PartiesEx parte SEALS PIANO CO.
CourtAlabama Supreme Court

Original application by the Seals Piano Company for a writ of prohibition, mandamus, or other remedial writ. Writ denied.

See also, 66 So. 146.

W.A Gunter and Tilley & Elmore, all of Montgomery, for appellant.

Rushton Williams & Crenshaw, of Montgomery, for appellee.

MAYFIELD J.

This is an original application to this court for a writ of prohibition, mandamus, or other remedial writ, to require the judge for the circuit court for Montgomery county to abate an attachment against the property of the petitioner. The facts as shown by the petition are stated by counsel for petitioner substantially as follows:

Petitioner who deals in pianos and organs, selling the same as a merchant, took a lease of a store from Bell and others in the city of Montgomery running for several years, on a rent maturing monthly during the lease, and had in said store a stock of pianos and organs. It concluded to cease business in Montgomery and move its stock of goods to Birmingham, Ala., where its principal store and headquarters were, and to dispose of its stock from that store in the due course of trade with the stock already in the Birmingham store, when an attachment was sued out by the lessor, Bell, for the whole rent for the entire term running to maturity, but none of which was due. The affidavit for this attachment was on the ground that an installment of the rent was due and unpaid. The plaintiff, finding that no rent was due, amended the affidavit, placing the attachment on the ground that defendant "was about to fraudulently dispose of its goods." Thereupon the defendant contested the truth of the ground of attachment by traversing the ground of attachment alleged. The court tried this plea on issue joined, without a jury, and overruled the same. A bill of exceptions, shown on page 25 of the record, was signed, setting out all the evidence which it is contended is shown without dispute; that petitioner was perfectly solvent, was worth $100,000 in excess of liabilities, and was simply moving its goods, consisting of pianos and organs, from Montgomery to Birmingham, to be disposed of there in the regular course of trade, and without any intention of making any fraudulent disposition thereof.

Conceding the facts as shown by the bill of exceptions to be as contended for by the petitioner, no case is made for the issue of a writ of prohibition, mandamus, or other extraordinary writ, as prayed. This record shows that the circuit court acquired jurisdiction of the parties and of the subject-matter, and does not show that it has exceeded its jurisdiction. It shows the institution and prosecution of an attachment suit, upon statutory grounds. The most that is claimed is that the court or the judge erred in finding the issue in favor of the plaintiff on the traverse of the ground of attachment alleged in the affidavit. If this could be conceded to be error, it cannot be corrected or cured by the extraordinary process of prohibition or mandamus, and can and should be remedied by appeal.

The following authorities in this state are conclusive against awarding the writ of prohibition in this case:

The writ of prohibition is to prohibit usurpation of power, and, where a special judge is appointed that acquires jurisdiction in the premises, his errors and irregularities, if any, must be corrected in some other way, and not by prohibition. Epperson v. Rice, 102 Ala. 668, 15 So. 434; 1 Mayf.Dig. 734.

The Supreme Court has a discretionary power to grant writs of prohibition to all the inferior courts of the state; but the writ should never be granted except in cases where the inferior court has clearly exceeded its jurisdiction in the order complained of, and the relator has no other remedy to which he can resort for his protection. Ex parte Morgan Smith, 23 Ala. 94; 1 Mayf.Dig. 736.

The writ of prohibition cannot be made to serve the purpose of the writ of certiorari to correct mistakes of the court, as to questions of law or fact within the jurisdiction of such courts. Smith v. Whitney, 116 U.S. 167, 6 Sup.Ct 570, 29 L.Ed. 601;...

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